Jurisprudence v Musicology: Riffs from the Land Down Under

Copyright has witnessed various difficult encounters between musical and legal knowledge. This essay focuses on recent high-profile Australian litigation, in which Men at Work's hit Down Under was held to infringe copyright in Kookaburra Sits in the Old Gum Tree. I use the Down Under case to illustrate copyright's troubling ontological engagements with music, a topic on which musicology offers considerable insight. However, I also claim that copyright-critical music scholarship is not always optimally directed, and will be assisted by greater recognition of the social constraints on judicial activity, and of judges' capacity to develop copyright law resourcefully. Consequently, improved interdisciplinary communication is a shared responsibility. Finally, reviewing Down Under's Australian reception, I argue for targeted contributions by music scholars to the law's own processes of reform. Such contributions, with their capacity to articulate clearly the public's stake in creative acts such as transformative reuse, will promote well-balanced policy outcomes.